The Supreme Court’s Wishful Thinking About Compromise

Everyone loves a happy ending, and in this season of political meltdown and partisan deadlock, the impulse is more acute than usual. So the question lingers from the Supreme Court’s non-resolution last week of the latest controversy brought about by the Obama administration’s effort to make birth control available to women in the work force: Was it a sign of a new appetite for compromise or of institutional dysfunction?

Along with the many headline writers who stressed “compromise,” I’d like to believe the former. But I fear the latter.

I think the court is engaged in an exercise of understandable but fruitless wishful thinking. To recap for anyone who might not have been devoting the nearly nonstop attention needed to understand how we got to the present pass:

Regulations under the Affordable Care Act define contraception as one of the “essential services” that employers must provide, without a co-pay, as part of their employee health plans. Churches themselves are exempt, but religiously affiliated schools, universities, charities and other nonprofit organizations are not. For them, the Obama administration provided an accommodation: Notify the government or your insurer of your religious objection, and your obligation and involvement end; the insurance company or plan administrator will pick up the coverage, and those institutions are out of the picture. Not good enough, said the nonprofits; our insurance plan will still be the basis for making birth control available, and we will be complicit in sin.

The nonprofits went to court, claiming that the administration’s accommodation “hijacked” their insurance plans and placed a substantial burden on their freedom of religion, in violation of the Religious Freedom Restoration Act. They lost, and the Supreme Court agreed to hear seven appeals from four federal appeals courts, consolidated under the name Zubik v. Burwell. The case was argued in March, and it was clear that the eight justices were deeply divided.

A week later, the justices issued an unusual order, suggesting the outlines of a compromise. Suppose, the unsigned March 29 order said, the objecting nonprofits (“petitioners”) wouldn’t have to provide any formal notice to anyone. They would simply obtain an insurance plan that excluded contraceptives. Then the insurance company, “aware that petitioners are not providing certain contraceptive coverage on religious grounds, would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.” The court asked both sides for supplemental briefs responding to this idea.

When I last wrote about this development, I speculated that it originated with Justice Anthony M. Kennedy, the justice most likely to be struggling with the issue and looking for a way out of having to decide it. On reflection, I now agree with smart observers of the court, including Professors Richard C. Schragger and Micah Schwartzman of the University of Virginia Law School and Professor Nelson Tebbe of Brooklyn Law School that Justice Stephen G. Breyer is the more likely instigator. He has spent two decades on the court trying to craft compromises that might bring Justice Kennedy around. He has failed as often as not, but he has had some successes, too, and Justice Breyer is the eternal optimist, ever hopeful that logic can bring together people of good will but divergent views.

In any event, whoever on the court came up with the “why can’t we all get along” idea may have met his or her match in the determination of the religious nonprofits to treat any compromise as unacceptable surrender. The Obama administration readily agreed that the court’s proposal of inferential notification could work. And at first it appeared that the nonprofits would go along as well. “Sisters Say ‘Yes’ to Scotus Solution,” proclaimed the Becket Fund for Religious Liberty, lawyers for one of the plaintiffs, the Little Sisters of the Poor. “When the court asked if there were other ways and if the Little Sisters would accept them, ‘yes’ was an easy and obvious answer,” the Becket Fund’s news release said.

But nothing about this case is that easy or that obvious. The nonprofits’ supplemental reply brief contained important qualifications. The brief made clear that the only acceptable arrangement would be “a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication.” Contraception coverage could be provided only “pursuant to an individual contract between the insurance company and the plan beneficiaries [i.e., women], not as an automatic and unavoidable companion to petitioners’ plans.”

To translate: There could be no automatic enrollment, and women would have to learn about the separate coverage, sign up and, separate insurance card in hand, shop for a doctor who accepted it. This is unacceptable to the Obama administration; as Solicitor General Donald B. Verrilli Jr. made clear during the argument two months ago, the whole point was to make contraception coverage “seamless” and integrated with the rest of a woman’s health care.

So the court’s reference last week to the “substantial clarification and refinement in the positions of the parties” presents a puzzle. What’s been clarified, it seems to me, is how far apart the two sides really are. It’s highly likely that the four federal appeals courts that rejected the nonprofits’ position in the first place will reiterate the conclusion that nothing in the Religious Freedom Restoration Act or the First Amendment requires the government to go through the contortions being demanded of it. Then the justices — however many there are at that point — will have decided what to do.

To clear my head of the weeds in which this case has become entangled, I went back to take a fresh look at the appeals courts’ opinions to see why judges across the political spectrum, including some of the judiciary’s most liberal and most conservative members, found the religious nonprofits’ position so lacking in merit.

Perhaps the most illuminating is the opinion written by Judge Cornelia Pillard for a unanimous panel of the United States Court of Appeals for the District of Columbia Circuit in Priests for Life v. United States Department of Health and Human Services. All the plaintiffs had to do to opt out of the obligation to cover contraception, Judge Pillard said, “is express what they believe and seek what they want via a letter or two-page form.” She continued, “That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state.”

A valuable part of this opinion was the context Judge Pillard provided for understanding who the plaintiffs were (most, although not all, Catholic-related) and how broadly their claim to a religious exemption swept:

“Catholic nonprofits have a long and broad history of service that goes far beyond worship or proselytizing. Nationally, Catholic hospitals, clinics, universities schools, and social service groups provide many services that are not inherently religious. Catholic-identified nonprofits employ and enroll as students millions of adults, not all of whom are coreligionists or share the Catholic Church’s religious opposition to contraception.”

I quote this passage because there is a widespread misunderstanding that the case is about nuns, specifically the Little Sisters of the Poor, a religious order whose mission is to run nursing homes for the elderly poor. Commentary following last week’s decision perpetuated this misunderstanding. “Surely the Obama administration could find a way to provide contraception to women without involving a group of Catholic nuns,” Ramesh Ponneru, a senior editor of National Review, wrote in a Bloomberg News post titled “The Culture War Obama Didn’t Have to Wage.” Richard W. Garnett, a law professor at the University of Notre Dame, wrote on Scotusblog that the Obama administration had “aggressively and unlawfully overreached” in its “strange insistence that a community of nuns who take vows of poverty and care for the elderly poor must serve as a vehicle for delivering free contraception to their employees.” In a Wall Street Journal column titled “Big Win for Little Sisters,” William McGurn wrote that “though it was more a TKO than a straight-up ruling, the Little Sisters prevailed at the Supreme Court Monday in their fight against the Obamacare contraceptive mandate.”

By my count, the Little Sisters of the Poor (who, as I’ve noted before, advertise themselves as equal-opportunity employers in the nursing home enterprise) are only one of 30 petitioners in the seven Supreme Court cases. The other 29 include Catholic and Baptist colleges, Catholic high schools, individual bishops, two chapters of Catholic Charities, other charities, and several individuals. Granted, it’s more compelling to hear about the travails of the Little Sisters (who even merited a photo op with Pope Francis last September) than about the objection to contraception coverage held by the named plaintiff in the lead case, the Most Reverend David A. Zubik of the Diocese of Pittsburgh.

Opponents of the contraception mandate have been brilliant in positioning the case as being about nuns who have a name “perfectly pitched to make liberals/progressives squirm,” as Mona Charen wrote in National Review in a post that accused The Washington Post of burying the group’s name in its story about the court’s decision. A reader had to turn to the jump, Ms. Charen complained, and “read down another five paragraphs to learn this is the case brought by the Little Sisters of the Poor.” Well, yes, and 29 other plaintiffs.

So pervasive has the administration-versus-nuns narrative been that it’s hard to believe that it has not at least subliminally played on the instincts and helped to shape the views of some members of the Supreme Court. Now that the cases are most likely back to square one, it’s time for the administration and its supporters to recapture the narrative and make clear to a confused public that this is not a case about nuns. It’s a case about women who should not, by reason of their particular employment, have to forfeit the right to comprehensive health care that the law makes available to other women in the work force. Wishful thinking, perhaps, but an urgent task.